Standing Committee D

[Mr. Frank Cook in the Chair]

International Criminal Court Bill [Lords]

Frank Cook: I apologise to the Committee for my late arrival. There is a first time for everything, and this is the first time that I have been late in more than 10 years.

Cheryl Gillan: On a point of order, Mr. Cook. On behalf of the Committee, may I say that I am delighted that you are here and that nothing untoward has befallen you? As you rightly said, in 10 years, you have never been late for a Committee, and I think that you are allowed to be late once every 10 years. We are delighted to have you in the Chair. Members on both sides of the Committee were worried about you.
 My serious point of order is not necessarily for you, Mr. Cook, but for the authorities that look after the procedures of the House of Commons. In our first sitting, when we were debating the programming motion, I said, 
 ``Far be it from me to suggest this, Mr. Cook, but the Chairman of the Committee might unaccountably be detained and not show up. I believe that there is no mechanism in the Standing Orders of the House for reclaiming lost time on the debate and scrutiny of any Bill.''—[Official Report, Standing Committee D, 10 April 2001; c. 6.] 
That observation sprang from my experience in the Committee on the International Development Bill, where the same thing happened. An untoward event befell another Chairman and he was late, so time was lost for scrutiny of the Bill. 
 You might not want to comment on that now, Mr. Cook, but I wanted to put the matter on the record. A Chairman can be replaced by any member of the Committee, with its permission. I request the authorities of the House of Commons to examine whether there should be a mechanism by which we could start proceedings in the Chairman's absence, so as not to be impeded in our examination of the Bill.

Frank Cook: I thank the hon. Lady for her point of order, which is well taken, and offer a comment. Had there been five Chairmen for the Committee this morning, I would still have been late. I was late because I was working and unavoidably detained on parliamentary duty. Had I been able to foretell that unexpected work pressure, I would have been able to get a Chairman for the Committee, even though I am its sole appointed Chairman.
 A provision was made on Monday this week, when the Programming Sub-Committee was to sit at 6.30 that evening and I had constituency duties in the morning. I kept in constant contact with the chief Clerk and with our worthy Committee Clerk to relate my progress down the M1 so that everyone would be assured that, if necessary, an emergency Chairman could be put in place. I assure the Committee that this morning's event was extraordinary and that I have no intention of being known as the late Mr. Cook, at least not in the next 10 years. The remarks are on record and I am content to leave it at that; there is no need to take further action.

Clause 2 - Request for arrest and surrender

Cheryl Gillan: I beg to move amendment No. 2, in page 2, line 19, after `demonstrate', insert `beyond reasonable doubt'.
 The clause covers the circumstances in which the Government are required to act on a request from the International Criminal Court for an individual to be arrested, or to secure his or her surrender to that court. That request may refer to someone who is accused of committing a crime, as defined by the statute, or who has been convicted by the court and is not in custody. Subsection (4) sets out the documentation that could accompany the request when someone has been convicted, but the request has not been accompanied by a warrant. If we wanted to examine the source material on which the subsection is based, we would go to article 91.3 of the statute. As I am sure the Minister appreciates, the purpose of the amendment is to ensure that no person should be subject to arrest and detention unless he or she has been shown to criminal standards of proof to be the person identified in the request. The amendment is simple. 
 The matter was discussed in another place, but I felt that it was apposite to return to it at this stage because it deals with a convicted individual, rather than one who is, say, only accused and thus is facing an earlier stage in a trial by the ICC. The amendment would ensure that the best care and attention is given to establishing that the person sought is the self-same person to whom the judgment refers. The highest standard of proof should be a requirement before an officer issues a warrant for arrest. 
 From following the debate in the other place, I know that there is some sympathy for that line of thinking. We have tabled the amendment to give the Minister the opportunity to re-examine that part of the Bill. If the amendment is accepted, it will provide protection for an individual over whose identity a sufficient element of doubt existed, and will avoid a situation where, although an individual's identity was in question, he could still find himself handed over to the ICC. 
 This debate will be extremely useful and will put on record the views of the Government and concerns about the Bill. The individuals with which this part of the Bill deals could face a long period of incarceration and could have been convicted, under the statute, of some heinous crimes. It is doubly important that we ensure that someone who has already been convicted is the same person to whom the sentence is applicable. I fully acknowledge that in another place the Attorney-General, Lord Williams of Mostyn, was unprepared to accept either the amendment or the reasonable suggestion of replacing the phrase ``beyond reasonable doubt'' with the words ``more likely than not''. 
 It is important to hear the Minister's reply. By refusing to accept ``beyond reasonable doubt'' and to consider the helpful suggestion of ``more likely than not'', it is implied that even if the court and its officers were less than 50 per cent. sure that the identity of the person before them was the same as that of the convicted individual, the court would still have to hand that person over. 
 The purpose of the amendment is to seek reassurances and put them on the record, while trying to persuade the Minister to accept an amendment that is, I believe, reasonable. A high standard of proof should be required before the judicial officer issues the warrant. I hope that the Minister agrees that it is important for the courts to make sure that the right person is surrendered. It is highly desirable that the standard of proof should be ``beyond reasonable doubt''.

Des Browne: I am trying to follow the hon. Lady's reasoning. It is not my understanding that, in our domestic law, before people can be arrested, we require police officers to be satisfied ``beyond reasonable doubt''. We require them to be satisfied to different standards, and we do not need to go into those now.
 As I understand the Bill, however, no one can be delivered unless the court makes a delivery order. The requirements in clause 5 about the proceedings for the delivery order require the court to be satisfied that the conviction relates to the person before it. Is clause 2 the right place to put the standard of proof, or should the amendment require the authority that makes the delivery order—that is, the court—to be satisfied ``beyond reasonable doubt'', if that is the standard of proof that the hon. Lady requires?

Cheryl Gillan: The hon. Gentleman's point is valid, and he could be right. Unlike me, he is a distinguished lawyer—

Des Browne: Am I?

Cheryl Gillan: I am sure he is.

Gerald Howarth: Is he expensive? That is the question.

Cheryl Gillan: The hon. Gentleman is a distinguished and expensive lawyer and the point he raises is extremely helpful. I hope that the Minister will enlighten us on it. Perhaps I am demanding the inclusion of something that is already implicit, but it would be reassuring if that were done. We are dealing with an individual who has already been convicted and escaped, and who will go straight to jail, will not pass go and will not collect £200. The person will be beyond the process of law, and in the convicted period of his or her life. We need to make sure that we have the right person for the sentence.
 I hope that the Minister has had a chance to reflect on the proposal. If he can include the safeguard in the Bill, it will reassure hon. Members and those in the other place who have raised the issue during the Bill's scrutiny.

John Battle: I agree with the hon. Lady that there must be a high standard of proof and that the right person should be surrendered. That is common sense and should be good legal practice. To arrest and hand over the wrong person would be to go down a cul-de-sac that would be in no one's interests, would waste time, and would be prejudicial to the person concerned.
 It seems that the amendment relates to a situation in which the United Kingdom has been asked to surrender a convicted prisoner—presumably an escapee—and the UK court has to satisfy itself that the person sought and the person arrested for surrender are one and the same. The amendment requires the appropriate judicial officer to apply the criminal burden of proof to the information that should be produced to demonstrate that the convicted person sought by the ICC is the one referred to in the judgment of conviction. My argument is that to introduce a further test at this point would be a case of belt and braces. I think that the hon. Lady said that she hoped that I would reassure her that the amendment was unnecessary because it is already implicit in the Bill, and that is my argument.

Gerald Howarth: I apologise for being a few minutes late. I cannot blame British Rail—I have just come from Cardiff where the train was on time. However, the tube, for which I believe Mr. Livingstone has responsibility, was somewhat delayed.

Crispin Blunt: It is Mr. Prescott.

Gerald Howarth: Is it the Deputy Prime Minister?
 Does the Minister envisage a circumstance in which the court convicted someone in absentia, perhaps a member of Her Majesty's armed forces, but there remained a belief in this country that the wrong person was being sought by the court? For example, the court might seek an airman who was responsible for a bombing, while we believed that someone higher up the line—perhaps an air marshall—would be the more appropriate person to seek. What would happen in such a circumstance?

John Battle: I wonder whether the hon. Gentleman understood what the hon. Member for Chesham and Amersham (Mrs. Gillan) said. We are talking not about anyone being picked off the street, but about someone who has been convicted. The key point is that there will not be convictions in absentia by the ICC, so his example would not arise.
 To accept the amendment and introduce a further test of the standard of information that should be produced would create a situation where the United Kingdom could potentially breach its international obligations. That would undermine our position. The amendment could introduce an additional barrier to the surrender of a fugitive who was a convicted war criminal. The hon. Lady may wish to apply the criminal standard of proof as to whether the person sought by the warrant is the one referred to in the judgment of the warrant, but we must be clear about what the processes and procedures will be in the context of arrest. As was reflected in the comments by the hon. Member for Aldershot (Mr. Howarth), we tend to assume that an atrocity has taken place and that we know from the media who is vaguely responsible, jump to judgments in our minds, and have the person before the court and locked up before they have gone through the procedures. I suggest to the hon. Lady that through this part of the Bill we are patiently, carefully and legally going through every procedure to ensure that the right accusations are made—that they are justified and are backed by evidence—and that the right person is brought before the court. That will produce a consistent process all the way through. Sometimes, in our imaginations we think, ``There's been an atrocity and we know who the culprits are; bring them to book and get them arrested, put them in front of the court and lock them up quickly.'' The Bill sets out the careful processes that start some time earlier. 
 The UK court in such a situation would not be trying the case, but fulfilling the request from the ICC to surrender a convicted person.

Cheryl Gillan: Am I right to assume that, because it is not a judicial process but a process of collecting someone who has been convicted and handing them back to the court, the Minister is prepared to accept a lesser onus of proof when deciding who the individual is than he would accept in our domestic law? Even if the court were not 100 per cent. sure—if, for example, the person had the same name as the convicted, but was innocent—would the Minister be happy if authorities in this country had no onus upon them to establish the identity of that individual, and could willingly hand him or her over? It is not impossible that someone called John Smith might be convicted, and there are several John Smiths. I am trying to establish whether the Minister is happy to accept a lower standard of proof in this area than he finds acceptable in other parts of our judicial process.

John Battle: The hon. Lady poses a fair question, but it is not a lower standard. The court will need to be satisfied that the person before it is the fugitive wanted by the requesting country, and named in the Minister's authority, if it is to proceed. In extradition cases now, the divisional court has confirmed that the test applied to the quality of identification evidence is the same as that applied in determining whether there is a sufficient case to answer in criminal proceedings. I am not a lawyer, but I understand that that is called the Galbraith test. My hon. and learned Friend the Solicitor-General probably knows it in detail. The information before a magistrate should be such that it would be bound to lead him to the conclusion that he reached about the person's identity. There does not need to be a double standard.
 The Bill makes provision corresponding to the relevant article of the Rome statute, 91.3(c), without applying any burden of proof test. If the UK court is not satisfied about the person's identity, it will not provide for their surrender. That is the first hurdle to get over, the first built-in proviso. There is also a possibility under clause 12 for the person to appeal against the delivery order on the ground that he or she is not the individual sought. In that case, the High Court will have to consider the matter. A series of processes will give the convicted person room for appeal. There is no need for the additional test in the amendment, which might also put us in breach of our international obligations.

Des Browne: I agree with the argument that my hon. Friend is advancing, but I have a question because of the terms of the statute. They envisage that no request for surrender of a convicted person will be supported other than by a warrant. That is my reading of article 91.3, which says:
 ``In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by'' 
a copy of a warrant. In this subsection, we seem to be anticipating circumstances in which a request for the surrender of a convicted person will not be accompanied by a warrant. There are likely to be few, if any, of those. In what circumstances does my hon. Friend envisage that there will be no warrant?

John Battle: I am advised that there is a standard provision of summons, which would cover the case. It is right to envisage the worst possible cases to ensure that there are no gaps in provision. The idea and policy that we are trying to carry through in setting up the court, and handing people over to it, is that the right people are brought before it and that they are properly tried before it. That must tie in with our procedures, which are good—we have good law in that respect. I hope that the standard procedures here will be helpful.

Cheryl Gillan: The hon. Member for Kilmarnock and Loudoun (Mr. Browne) raised an important point. As I read it—perhaps the Minister can confirm it—the wording of 91.3(a) is
``a copy of any warrant of arrest'', 
which implies that there may be a situation in which there is no warrant. I presume that the law that we are seeking to enact will cover that strictly, and fill a potential lacuna. I am sorry, I am helping the Minister out, but I was examining the matter and wondering what would happen if there were no warrant. 
 I feel that the Bill is here correcting what is almost a lacuna in the Rome statute and ensuring that we do not have faulty legislation; in that, the word ``any'' is the crucial point. Can the Minister confirm whether my thinking is correct?

John Battle: The hon. Lady is absolutely right, and I am grateful for her clarification. The statute reads
``a copy of any warrant'', 
and the word ``any'' is crucial. That ties us into the circumstances that we are discussing. Clause 2(4)(b) is trying to follow the wording of article 91.3(c) of the statute as part of our policy of co-operating with ICC requests, while ensuring that that is in line with what we do anyway. 
 We are talking not about arresting anybody, but a convicted person. There are ways of assessing whether a person is a convicted person, and not simply by the use of photographs, fingerprints, DNA and so on. There are means of knowing who the person is. I cannot envisage that there will be practical difficulties. However, the hon. Lady most helpfully pointed out that our tightening is helpful because of the word ``any''.

Edward Garnier: I was intending not to speak on the amendment, until the Minister used the awful word ``escapee''. I ask him never to use it again in the sense that he meant. An ``escapee'', presumably, is the victim, or the respondent of an escape. The escaper is the person who has got away.
 Leaving that tiresome and semantic point aside, the debate between my hon. Friend the Member for Chesham and Amersham and the Minister has been reassuring. None of us wants to see the wrong person sent to the ICC. We have seen in our own jurisdiction the difficulties caused by identification evidence. The Minister correctly mentioned the Galbraith case, the standard case on identity to which one always has to direct juries when dealing with identity issues. Identity has led to some of the greatest problems in miscarriage of justice cases during the past 15 or 20 years. As I am sure that the Solicitor-General will confirm, the Court of Appeal has been very keen to ensure that courts do not allow juries to be persuaded by faulty identification evidence. 
 The circumstances here are slightly different because, as the Minister said, we are dealing with a convicted person. The chances of mistaking the identity of a convicted person—of a person convicted in The Hague, and who is the subject of a request under clause 2, not being the same person who is picked up in this country—are relatively slim. Perhaps we should not be bound up by the expression in our amendment, although that is our fault, because it says ``beyond reasonable doubt''. We want to be sure, however, that the delivering system in this country behaves so that we are sure that the person in front of us is one who is to be delivered back to The Hague. 
 Neither my hon. Friend the Member for Chesham and Amersham nor I are hung up about the particular wording. In the light of this country's disasters of identity evidence during the past 15 or 20 years, we want to be sure before we ratify the statute of Rome that we are doing all that we can to prevent miscarriages of justice as a result of our enthusiasm for the overall principle behind the ICC, which is to bear down on war criminals. The Minister mentioned belt and braces, but if we have to use belt and braces, let us do so. 
 My hon. Friend mentioned article 91.3(a) of the Rome statute. I assume that the phrase: 
``any warrant of arrest for that person'' 
refers to an ICC warrant and not, for example, to a Belarusian warrant for a bank robbery, or to a Sri Lankan arrest for another offence. Will the Minister confirm that that is implicit in the article? 
 Paragraph 3(c) of that article refers to: 
 ``Information to demonstrate that the person sought is the one referred to in the judgement of conviction'' 
but contains no specific reference to who bears the burden of proof: that is, who must prove this or that. That matters, because courts are often not concerned, in practical terms, about who must prove something. However, they are interested in whether the evidence is available to reach a just conclusion, so the Minister need not be concerned about that. 
 Article 91.4 reads: 
 ``Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.'' 
May I have the assurance that, in the event of consultations taking place between us, as a state party, and the court, the Government and any successive Government will draw to the court's attention our legitimate concerns about mistaken identity? We must bear in mind our judicial and criminal court history over the past 15 or 20 years, in which time we have seen appalling miscarriages of justice arising from issues of identity. May I also be assured that we will not have to wait for the court to request consultation with us, but that we, through either the Foreign Office or the Law Officers' Department, will initiate consultations to ensure that the court is aware of our concerns? Our concerns, as expressed by my hon. Friend the Member for Chesham and Amersham, are not meant to cause difficulties for the Government; rather, as the Minister was the first to appreciate, we have raised them to assist the better making of law.

John Battle: It is important that we keep in focus the big picture of the purpose of the Bill. I take it not as criticism but as a challenge when the hon. and learned Member for Harborough (Mr. Garnier) tells us not to get carried away on a tide of enthusiasm when setting up the ICC, but to make sure that we must set in place the right laws and procedures to get the court working properly. We cannot act haphazardly or leave matters to chance, hoping that underlying good will will ensure that everything works out all right. We must introduce the correct procedures to ensure that the right people go before the court. I agree completely about the importance of getting the wording of our commitment to the statute right.
 We tend to lose sight of the fact that the Bill is not about picking up a bank robber, a criminal or a murderer wandering around Europe or elsewhere. In a sense, when I first saw the Bill, I thought that it was written the wrong way around, because it ensures that we discuss handing over convicted people before we discuss the crimes for which they are convicted. We must keep in mind the sorts of crime with which the statute deals: crimes against humanity, such as genocide and war crimes, carried out on an horrendous scale. The ICC is a megacourt to deal with mega-accusations against people. It would surprise me if a person who had been convicted by the court was wandering around and had not been not locked up. Incidentally, I accept entirely the hon. and learned Gentleman's correction on whether a person is an escapee or escaper. 
 We are dealing with a hypothetical case of a convicted war criminal who has been convicted of genocide or mass murder and who, after wandering around for a while, arrives in Britain and has to be handed over. There is a question about identity. I accept that names are sometimes got wrong— we are well aware that that has happened in the past. However, the clause is based on current extradition practice in identifying the person sought. Thanks to the lessons of history, we have a high judicial standard, and we need to ensure that that will be upheld. 
 The hon. and learned Gentleman invited me to say whether the warrants that we are discussing could be from individual countries such as Belarus. We are discussing only ICC warrants. In addition, I assure him that our comments go on the record, so it will be possible to take them further. If consultations with the court about potential misidentification are needed, we can raise them and make sure that they are taken seriously. We do not want the court to get off on the wrong foot. It would be horrendous if the wrong person were accused of genocide and handed over when the person who had committed that crime and been convicted was still wandering around. It is important to get it right, but the amendment is unnecessary. 
 The hon. Member for Chesham and Amersham invited me to assure her that what she is seeking is implicit in the Bill. I think that we have strengthened reassurances, rather than weakened them.

Cheryl Gillan: I am grateful to the Minister for generously responding to the very valid points that my hon. and learned Friend the Member for Harborough made. We have had a short but good debate and I am reassured that the Minister and the Government are taking into consideration the points that we made using the amendment as our vehicle to do so.
 The Minister's response justifies our having raised the issue. We are dealing with people who have nowhere to go: having been convicted of megacrimes, they have nothing to lose and they are desperate. They are likely be surrounded by people who will stop at nothing and who might be willing to sacrifice an innocent individual to enable the perpetrator—the convicted criminal—to go free. We are potentially dealing with foreign nationals, with people who have no moral convictions of any sort and with people who have nothing to lose whatever they do, so it is important that we ensure that we use the correct and highest standard of proof when acting as directed by an outside agency. 
 The amendment was not ambitious. I am sad that the Government, even after reflection and after acknowledging our arguments, have not accepted it or offered some other means of including in the Bill a requirement for the highest possible burden of proof. I am, however, satisfied that the Government appreciate our concerns and that in any future interpretation of the legislation, the record of the Committee's proceedings can be consulted. Therefore, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Cheryl Gillan: The Committee had a rest from the sound of my voice earlier in the week, so I hope that it will be forbearing now. When I discussed it with you, Mr. Cook, and with the Clerk, you graciously agreed that the clause 2 stand part debate would be the right one in which to raise two issues that are of particular concern to me. One is an all-embracing issue on which I want to tease out the Minister's thinking. The other is smaller, but clarification of it relates to the entire Bill. Although it is particularly apposite to clause 2 because it deals with a part of the statute of Rome to which the clause makes reference, clause 2 is the foundation stone of part II.
 My first question is: what will happen to the sovereign right of individual nations to determine the outcome of their own internal conflicts when the Bill becomes law and countries sign up to the statute? That is important, because we heard last night that of the 80-odd conflicts that were recorded as taking place around the world the last time that statistics were drawn up, all but two or three were internal. That is the nature of today's disputes and wars. 
Ms Oona King (Bethnal Green and Bow) indicated assent.

Cheryl Gillan: I see the hon. Lady nod.
 The point is serious in terms of the court's action once a country has signed up to it. It seems to me that it will be able to overrule the prerogatives of certain nation states, and that causes me great concern. I shall draw on two examples, although we could use others and might be able to cite more in the future. One is the truth and reconciliation process in South Africa; the other our own reconciliation process in Northern Ireland. 
 There have been numerous transitions to democracy during the past few decades. We have seen many newly installed democratically elected Governments take over and face the terrible question of how to deal with the human rights violations committed by previous regimes, dictators, armies and juntas. Such Governments face an amazing legacy of political violence that includes some of the worst atrocities that human beings can perpetrate against each other: purges, massacres and individual cases of torture, death and destruction. 
 The setting up of the truth and reconciliation process in South Africa was, in my opinion, one of the most amazing acts of courage of any nation state in living memory. Nelson Mandela will be in London on Sunday and I am hoping to go to a celebration of African culture that he is also attending. I make no apology for putting in a little advert for what is going on at the moment, because it is important that our country appreciates the marvellous culture and heritage of South Africa, and continues to acknowledge the bravery involved in that country's peace process and its truth and reconciliation process. 
 Many countries do little to deal with the past. Sometimes, there is no desire at Government level even to confront what has happened. We have seen some Governments inquire into human rights violations and fail to publish the findings. It is, therefore, all the more important that when a country is prepared to confront its past we do not erect an impediment that might stop that process from taking place. We have witnessed some of those who have violated human rights in the past being prosecuted by the countries concerned, and I appreciate that the statute covers that eventuality, which is all well and good. However, the statute could prevent a truth and reconciliation process. 
 The truth commission and the sophisticated truth recovery process that started in South Africa attracted extensive national and international interest. The number of cases dealt with was extraordinary. It is arguable that a truth and reconciliation process is more capable of dealing with a large number of cases than a highly expensive and specialised ICC in The Hague. As a supplementary question to what happens to potential future truth and reconciliation processes, will the Minister say what the position would be on events happening in this country that might fall to the expense of the taxpayer? Issues of cost arise out of clause 2 that place financial burdens on British taxpayers of which they should be aware. 
 The Truth and Reconciliation Commission in South Africa dealt with vast numbers of individuals who could, perhaps, not have been dealt with by an ICC. Other truth commissions have generally not resulted in the prosecution of individuals. I understand that, in some instances, such commissions have resulted in the names of individuals being handed over to the normal judicial process. That would fit with the statute, but what about individuals who are not handed over and prosecuted? Truth commissions do not appear to be precluded from carrying out prosecutions, but the TRC in South Africa was mandated to grant amnesty, and it granted it to a large number of people who had committed atrocious crimes. 
 The TRC has fulfilled the fundamentally important function of bringing into the public domain the acknowledgement of the truth. It has made people face up to what has happened in the past and enabled history to be acknowledged, not rewritten. For the most part, it gives a better and more reliable picture of past abuses and actions and is desirable for that reason. However, in a funny way, it represents an anti-democratic process. A truth commission is rarely subject to democratic accountability, but is championed by Government and citizenry and exists by popular demand, as was the case in South Africa. 
 It is desirable that a truth and reconciliation process is not closed or tucked away in a court, but has the distinctive feature that commission in South Africa had—that of proceeding in a blaze of media publicity. Openness to public participation and scrutiny is a good thing, as I am sure the Minister will agree. That enabled the process to reach a far wider audience in Africa and elsewhere. The values of that process were healthy to democracy. They highlighted the benefits of transparency and of public debate and participation—the media provided a service. I acknowledge that there were drawbacks to the process being conducted in a blaze of publicity, but some steps towards reconciliation, such as private meetings between victims and perpetrators, took place out of sight of the media, in a private setting. There are ways to overcome the drawbacks. 
 There was an opportunity for restorative justice to play a part in the process. That issue is raised by the Bill. What future has the process of restorative justice within the context of what the Bill is trying to achieve? 
 An obvious failing that became clear in the South African truth and reconciliation process was that the commission was unable to investigate thoroughly the numerous human rights violations that had been committed by South Africans in neighbouring countries. It could not demand testimony relating to those actions because it could not guarantee indemnity from prosecution in those countries. If a country has not ratified the statute of Rome, though it might have signed up to it, and wants to set up a truth and reconciliation process but lives next door to a country that has ratified the statute, its truth and reconciliation process could be inhibited by its being unable to guarantee that people in the neighbouring country, and therefore falling under its regime, would be immune from prosecution by the ICC. Even if a country wants to go through a TRC process before ratifying the treaty of Rome, its process might be inhibited by a neighbour that has entered the group of nations that has ratified. The Minister might say that that is unlikely, but it is possible. I want to explore the possibility and learn what the Minister thinks about the possible effect on non-ratifiers in an interim period because of the potential for removing the opportunity for a truth and reconciliation process to take place. 
 The process in South Africa was imperfect, but it was one of the best processes that we have seen for facing a problematic past and moving forward into the future with great hope. No matter where one stands, and what one thinks, one must admit that that TRC process has been successful.

David Lammy: In the context of the TRC in South Africa, would the hon. Lady would comment on something that is the exception rather than the rule internationally? Various factors at work in South Africa made it exceptional, including the fact that the vast majority of mainstream political parties wanted to progress quickly and agreed that reconciliation was the best way forward in the context of the ethnic conflict that had divided the country for some time. Also, there was an economic imperative. A large black population was anxious to proceed to greater prosperity and reluctant to engage in a lengthy legal process that would have opened many wounds and could have destabilised the incoming African National Congress Government. Finally, despite the vast evils of apartheid, atrocities had occurred on both sides, as evidenced by events involving Winnie Mandela. Will the hon. Lady explore those issues?

Cheryl Gillan: The hon. Gentleman speaks with experience and as another distinguished lawyer. I have tried to choose my words carefully so as not to be too judgmental. I appreciate the issues that arose on both sides of the argument. As I recall, there was great debate about whether passages critical of ANC members should be included by Desmond Tutu in the final report, with objections being raised even by President Mbeki at one stage. Great attention was needed to enable South Africa to continue in relative stability, rather than to precipitate more violence or dramatic events.
 However, that way of proceeding is not unusual. I understand that since the 1980s truth commissions have gained prominence and currency by virtue of the way in which they have dealt with violations and then moved on. About 15 truth commissions have been held since 1971, although I cannot list them all. My reading on this subject suggests to me that in the main they have been successful and that they worked on important processes. Each had distinguishing features, but there should always be a presumption that the best way forward is in conditions of stability, rather than by any means that would precipitate violence or destabilise the economy, which could only cause greater grief. 
 I hope that the Minister will tell us about what happened in Northern Ireland. I understand that 434 individuals were released under the Northern Ireland (Sentences) Act 1998. We have seen—and been made subject to—the release of people convicted of atrocious offences, including terrorist offences.

Mike Gapes: I spent two years as a Parliamentary Private Secretary in the Northern Ireland Office. I was there during the negotiation of the Belfast agreement, and no one ever suggested that the horrendous actions of terrorist organisations on the loyalist and republican sides were war crimes. They were criminal activities. They were often horrendous, violent and murderous, but the term ``war crime'' was never used.

Cheryl Gillan: I did not use the term ``war crime''. Perhaps the hon. Gentleman can wait until my argument is deployed. At issue is not so much the individual circumstances as the principle of the amnesty given to individuals as part of a process of eliminating the conflict in a country. Even in this country, we have released convicted criminals as part of a peace process. What happens if a country wants to come to terms with its past and, in arriving at that happy conclusion to events, wants to grant an amnesty to people who have been convicted of activities that would be regarded as war crimes under the international criminal court statute?

Crispin Blunt: The hon. Member for Ilford, South (Mr. Gapes) referred to war crimes. I would argue that article 7 of the statute of Rome applies to terrorist organisations on both sides in Northern Ireland. They are certainly guilty of
 ``Murder . . . Deportation or forcible transfer of population''. 
People have been forced from their homes—indeed, people from both communities have been forced out of Northern Ireland as a result of terror. Terrorist organisations are also guilty of 
 ``Imprisonment . . . Torture . . . Enforced disappearance of persons''. 
Paragraph 1(h) refers to 
 ``Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural . . . grounds''; 
both loyalist and republican terrorist groups have been guilty of that. They have been guilty of the ``crime of apartheid'', because they have forced communities to live in separate areas. They are also guilty of other ``inhumane acts''. Without doubt, therefore, one could under article 7 bring a complaint of crimes against humanity against the terrorist organisations in Northern Ireland.

Cheryl Gillan: I am grateful to my hon. Friend. He speaks with great experience. I did not pursue the issue in deploying my argument, but my hon. Friend's remarks go a long way towards contributing to it.
 It is for the Minister to tell us how the processes we are discussing will be affected and whether they will be removed from the bag of tools that is available to a democratically elected Government when facing the past and the crimes of their citizens. 
 Many conflicts are going on and many views are taken of them. We need only consider the conflict between Russia and Chechnya. There seems to be a broad acceptance of the objectives of the Russian operation: when we talk about Russia and its territorial integrity, we seem to accept what the Russians are doing in Chechnya and that they are fighting terrorism. Severe reservations have, however, been expressed about the actions of President Putin and the Russian army in Chechnya. We constantly see the Chechens' reactions—most recently in the hostage situation that was, thankfully, resolved without the loss of life. It is therefore important to consider what our reaction will be in the future to solutions to such conflicts. 
 We should also consider the European Union, given that we are members of it. On 17 December 1999, the EU and the United States made a summit statement. Page 21 of the Library brief on the Chechnya conflict takes an extract from that statement. It stated: 
 ``We recognize Russia's right to uphold its territorial integrity and to defend its citizens from terrorism and lawlessness, and we condemn terrorism in all its manifestations. But we believe that Russia's military tactics in Chechnya are undermining its objectives, creating a humanitarian crisis, endangering innocent civilians, and jeopardizing stability throughout the Caucasus region. A military solution to the conflict is not possible. We call for an immediate and lasting cease-fire throughout Chechnya and a political dialogue that can lead to a durable solution to the crisis.'' 
A ``political dialogue'' and a ``durable solution to the crisis'' are the two elements of that quotation to which I want to draw the Minister's attention. It may be that the political dialogue and the durable solution could involve a truth and reconciliation process. It could also involve an amnesty. If Chechnya and Russia—unlikely, but possible—ratify the treaty and join it, what will happen to them? 
 If there is no room for that process, is that not a disincentive to those countries to sign up to the statute? I would abhor that, because I should like everybody to sign up to the statute. We should think about how those that are not signatories and will not ratify can be encouraged to come on board. However, if we tell those countries that they cannot find their own solution, surely we will drive them from, rather than pull them towards, the very institution that we hope will be there for the next 100 or 200 years to deter the disgusting, revolting, inhumane acts that we have to consider in the context of the ICC. I hope that the Minister will be able to let the Committee into his thinking on this serious matter, because it is of great importance and goes to the heart of the operation of the court. 
 My second point is more technical. It concerns article 91. I refer to the proceedings in the House of Lords on 8 February 2001, reported in column 1272 of Hansard. Sadly, I cannot find my marked copy. It will take a while to find it.

Frank Cook: While the hon. Lady is preparing to make her second point, would she care to have the Minister respond to her first?

Cheryl Gillan: Yes. Thank you, Mr. Cook.

Gerald Howarth: On a point of order, Mr. Cook. For the assistance of the Committee, I should like to take up my hon. Friend's arguments. However, I shall be happy to listen to the Minister first.

Frank Cook: Very well.

Mike Gapes: I, too, wish to make a contribution, Mr. Cook. Will that be possible?

Frank Cook: Do you need more time, Mrs. Gillan?

Cheryl Gillan: Yes, Mr. Cook.

Frank Cook: I shall come back to you. I call Mr. Gapes.

Mike Gapes: I wish to take up some of the points raised by the hon. Member for Chesham and Amersham, and to refer to two other examples. The first is the former Yugoslavia and the second is Chile.
 Although there was an internal process of transition in Chile, that process, whereby the democratic forces came to an agreement with the military junta that allowed Pinochet immunity, made him senator for life and stacked the senate so that it had an undemocratic majority, was only a partial transition to a democratic society. It took the entirely correct actions of a Spanish judge and a British Home Secretary, and the extradition process involving the Law Lords, to open up an internal debate in Chile. 
 Action taken by Spain and the United Kingdom concerning the mistreatment, torture and murder of their nationals by the Chilean authorities under Pinochet enabled a political process to be accelerated. The democratic forces—the Christian democrats, the socialists, the radicals and others in Chile—which had not initially been able to get all that they wanted from the transition, were able to use that acceleration. Now the Chilean courts and Chilean society are dealing with the crimes committed by Pinochet, in a further attempt to expunge those crimes and deal with their internal healing process. This is not an either-or situation. 
 I always respected my socialist comrades in Chile, for whom I worked and with whom I acted in solidarity against the vile crimes of Pinochet. Lady Thatcher and others in the Conservative party supported those crimes. In addition, the United States Administration and British Conservatives supported the Pinochet coup over many years. Those of us who cared about human rights and democracy in Chile in all parties—there were some Conservatives who cared, but not enough—knew that the internal transition would be difficult. That transition will take years and the healing process took years, and was assisted by work done by the Spanish and British authorities to bring about change within Chile. We do not have an either-or choice. 
 My second point is more difficult. It concerns Yugoslavia. I understand very well why the international community wishes to get Milosevic into the tribunal in The Hague as soon as possible. However, I must say that we need to be sensitive to the transition that the Serbs are going through, whereby Mr. Djindjic, who had to flee to Montenegro, is now the Prime Minister, and whereby there is a long-term opponent of Milosevic as president—Mr. Kostunica.

Crispin Blunt: While the hon. Gentleman addresses his remarks to Yugoslavia, he might like to examine the consequences of the incorporation of this statute for a process such as that which resulted in the Dayton agreement. President Milosevic had to travel to the United States to endorse the Dayton agreement. He should consider whether that would be possible under the new system.

Mike Gapes: I accept that there will be difficult situations in future, but the statute does not apply to the Dayton agreement. Dayton is in the past and the proceedings taking place in The Hague are subsequent to it. I will come to the hon. Gentleman's point, but I want to do so in my own way. The reality of the transition in former Yugoslavia is that in Croatia, Tudjman escaped justice by dying. War crimes were committed by the Croatian and Bosnian Croat forces under the control of Tudjman and his regime, but Tudjman was never indicted—although I believe that he should have been.
 There is some justice in the criticism that the Hague process did not involve an even-handed approach to all those involved in war crimes. There is always a danger of establishing victors' justice in such conflicts, and that is often discussed. The world sees people as wearing either black or white hats, whereas unfortunately they are all really wearing murky grey hats. On all sides crimes have been carried out at the instigation of participants in bitter civil wars and conflicts. 
 What I have said is not to argue against truth and reconciliation processes or against peace processes such as the one in Northern Ireland. However, it is necessary to recognise that those processes take time. A transition has to be undergone. A society may be ready internally for a truth and reconciliation commission, or for a flawed transition process, as in Chile. However, it may not, at that time, be ready to come completely to terms with its past and to engage in internal healing and reconciliation that will take decades. 
 In Northern Ireland we talked about an agreement, but there was no trust. As the hon. Member for Newry and Armagh (Mr. Mallon) has often said, the main point is that trust was beginning to creep in. That is what we had to work for. As I do not want victors' justice, I want the ICC to set a framework in which we can, universally, deal with the relevant questions. We should not need to set up ad hoc tribunals like The Hague or Rwanda tribunals. At the same time, we should be sensitive to internal circumstances. I do not think that it is wise to put great pressure now on Djindjic and Kostunica, perhaps leading to an internal political reaction and creating difficulty for them, when they want Milosevic to be brought to account for the murder of journalists in Serbia, for taking state money, for asset stripping and for other things that he and his acolytes have done over the past decade and more.

Cheryl Gillan: The hon. Gentleman is making some interesting points. Perhaps I have read things wrongly, but I hope not. I was particularly disappointed when I felt that the international world, including our Government, was making haste to the leader of the country to tell him to hand Milosevic over to The Hague. I felt that the very spirit of setting up the ICC was to make it possible for trials of the relevant people to be conducted in the country concerned, and not to tell those countries to hand criminals over for a show trial in The Hague. I thought that the thrust of our foreign policy at the time in question was against the spirit of the Bill.
 I am trying not to make a political point, but I must inevitably do so, because there was a tremendous tension and conflict between what the Government were saying and what they were doing.

Mike Gapes: Ministers can answer with respect to the Government's position, but there was clearly a difference of emphasis in some statements from the United States and others by Europeans. Clearly, the internal crimes with which the Serbian authorities are charging Milosevic do not relate to those on which he has been indicted to appear at The Hague. The question is which should come first. Serbia has him locked away for one set of crimes, but the international charges are still extant. We should be sensitive to the need not to make it possible for people to argue that they have been locked up domestically simply to satisfy another country's demands. Therefore, I want all those crimes to be dealt with as soon as possible, but as an international community we must be sensitive. The accusations and charges against Milosevic are being dealt with under The Hague process, not by the ICC. There are differences in the provisions for The Hague, Rwanda and the ICC, which I do not want to go into now because it would take too long.

Gerald Howarth: I strongly support the observations of my hon. Friend the Member for Chesham and Amersham about the implications of the Bill for processes of reconciliation in countries where conflict—sometimes, serious conflict—has taken place. My hon. Friend referred in particular to the process of truth and reconciliation, as it was called, in South Africa, and she also mentioned Northern Ireland. The important point for us to understand—perhaps the Minister will deal with this when he replies—is that it will be difficult for the court to take into account in its deliberations such processes of reconciliation, which take place in countries where crimes have been committed that are generally recognised to fall within the categories set out in the statute of Rome. The difficulty is that we are not dealing with conventions; we will be dealing with United Kingdom statute law because the Bill's purpose is to incorporate huge chunks of conventions into our law.
 I am not a lawyer, let alone an international lawyer, so I do not know the extent to which international conventions are binding on, and capable of interpretation by, our courts, but I know that once this legislation is enacted in UK law—and I recognise that there is also both English law and Scottish law—it will be subject to the strict interpretation of our courts. However, because the Bill makes no reference to a process of reconciliation, I put it to the Minister that no court will be able to take that process into account—not even the ICC. Although the ICC has some latitude to decide how to proceed in a particular case, and thereby to require us to arrest and surrender someone who has been convicted or charged by the ICC, we should be clear that its latitude will have no reference to the question of reconciliation. The Minister might be able to tell us that the ICC will be able to decide not to proceed in certain circumstances because, however horrific the crime, a process of reconciliation is taking place, which requires the ICC not to take any action. 
 I shall now refer to Chile. I hope that I will not be accused of being insensitive and of trying to wind up the hon. Member for Ilford, South (Mr. Gapes), whom, I know, is sensitive on the subject. However, I, too, feel sensitive about Chile because I visited the country in 1977. I saw the poverty in that country, and have seen it develop since then into a hugely prosperous and democratic country. 
 I do not want to revisit all the hon. Gentleman's arguments, except to say that I disagree fundamentally. I wish that people on the political left would understand that Salvador Allende, whom they regard as their patron saint, was no saint whatsoever. Had it not been for the intervention of the armed forces under General Pinochet in 1975, having failed to persuade the courts to do what he wanted, Allende would have overridden them and used his Cuban mercenaries to seize control. 
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.